Will guilty plea add bias to Enron jury pool?

Will plea add bias to Enron jury pool?Another push to move the trial of Skilling and Lay is expected

TOM FOWLER and JOHN C. ROPER, Copyright 2005 Houston Chronicle

Published
6:30 am CST, Sunday, January 1, 2006

This past fall, 400 potential Houston-area jurors answered lengthy questionnaires about their attitudes toward three former Enron executives then scheduled to go to trial in January.

The goal: to find jurors with an open mind toward the men.

But with defendant Richard Causey's decision to plead guilty last week, will those potential jurors change their attitudes toward the remaining two?

If you're a defense attorney for Jeff Skilling or Ken Lay, your answer is a resounding "yes." Causey's name was all over the questionnaires, they note, meaning in jurors' minds his admission of guilt could bleed over onto the other two.

But most observers say Causey's plea deal is not going to give the defendants what they have sought: a trial in another city.

"Any such motion would almost certainly be denied," said Doug Keene, an Austin-based jury consultant. "We've already had all the other Enron trials in Houston. If this was something the court was going to consider, it would have happened before the Causey issue came up."

The first Enron-related jury, from the 2002 Arthur Andersen criminal trial, took weeks to reach a verdict and at one point was deadlocked, Keene notes. The Nigerian barge trial jury in late 2004 acquitted one defendant, and the Enron Broadband Services trial in 2005 ended with a mix of acquittals and deadlocks.

Causey, who faced 36 counts including fraud and money laundering, pleaded guilty to one securities-fraud charge last week in exchange for a seven-year prison term that could be reduced to five years. He is expected to help the government with the trial, which has been moved to Jan. 30. Lay and Skilling maintain their innocence.

Skilling faces more than 30 charges, including fraud and conspiracy; Lay faces seven counts of fraud and conspiracy and four counts of bank fraud that are scheduled to be tried separately.

Given how widely coverage of the Enron story is spread via print, television, radio and the Internet, jury pools in other communities are just as likely to hear about Causey's plea deal as in Houston, said Robert Gordon, a trial psychologist.

"The question is, could you find a venue where they were not aware of it? No," Gordon said. "Its impact for the federal district courts in Tyler, Midland, El Paso and other places will be exactly the same."

It may take a bit longer to weed out jurors with bias against the defendants in Houston because the company was based here, but that doesn't mean an impartial jury couldn't be found here, Gordon said.

Cause to renew motion

Regardless, attorneys are expected to make one last push to get the trial moved out of town. Causey's guilty plea and the questionnaires will likely both be featured prominently in that effort.

"There's no question that we have fodder in the questionnaires that we've already reviewed to renew the motion for change of venue," said Mike Ramsey, lead attorney for Lay.

He declined to say what the fodder is, but in a filing made just before Christmas, Daniel Petrocelli, Skilling's lead trial lawyer, said questionnaire responses "reaffirm that the Houston jury pool is deeply infected with pervasive and irreversible bias against the defendants."

Petrocelli is expected to present data compiled from the questionnaires to make his case for a change of venue. He has asked the court to allow him to include the results from 109 people who as of last week have already been taken out of the jury pool because of hardship or medical reasons.

U.S. District Judge Sim Lake had not ruled on the request as of Friday afternoon.

This isn't the first time the defense has tried to move the trial.

Another city sought

In November 2004, it released studies it sponsored of Enron media coverage and the attitudes of potential jurors in Houston and several other cities, including Denver and Atlanta.

The surveys indicated 31.8 percent of respondents in the Houston area negatively described Skilling, about three times the percentage of people in the other cities where polling took place. They also cited "fervent, inflammatory, and demonstrably prejudicial" media coverage, particularly from the Houston Chronicle, as a reason to move the trial.

Petrocelli asked at the time that the case be moved to Denver, Atlanta or another city because the Houston community "has an emotional, sociological, and financial stake in the outcome of the case and has presumed Mr. Skilling to be guilty unless proven innocent."

The judge denied the motion in January 2005, saying a city the size of Houston could produce an impartial jury. He also said for the most part that the media's reporting appeared to have been objective and unemotional.

There have been efforts to move other Enron-related trials from Houston as well. One succeeded.

Lea Fastow, the wife of former chief financial officer Andrew Fastow, had her change-of-venue request at first denied by Judge David Hittner. But when she entered a guilty plea and then withdrew it, he ordered her trial moved to Brownsville. She entered another guilty plea on a single tax charge before trial and served one year in prison.

There are several ways the judge can address any effect Causey's plea has on the attitudes of the jury pool, experts say.

Questioning jurors

The easiest method would be to simply read a question from the bench to the gathered potential jurors asking, for example, whether Causey's plea has changed their opinion of the other defendants, Keene said. Those who raise their hands could then be questioned in-depth, either in the courtroom or in the judge's chambers.

The judge could also do more exhaustive interviews with every potential juror in his chambers with the attorneys present. This could be a particularly lengthy process but isn't unheard of.

Attorneys for Lay and Skilling would prefer the more in-depth approach, but so far Lake has indicated he is not in favor of individual examinations. After Causey's plea hearing last week Lake indicated he'd likely have members of the jury pool with possible bias approach his bench for a private discussion.

Typically, judges ask such jurors whether they can put aside their opinions and stick to the rules of law. They also may give them a brief lecture on the importance of being impartial.